Targeting American Terrorists with Drones: Efficient, But Legal?

In 2002, President Bush authorized a drone attack in Yemen targeting the mastermind of the USS COLE bombing. Also riding in the vehicle was an American citizen.

Though the American was not the target of the missile strike, his death set the stage for the debate of using drones to attack targets outside of designated combat areas such as Iraq and Afghanistan. The argument has two stages. First, whether or not to target terrorists outside of combat areas. Are they still considered combatants if not in an active combat zone engaging U.S. forces on the ground? Secondly, should terrorists be accorded additional consideration before being targeted if they are U.S. citizens?

Immediately following the attacks of 9/11, Congress passed the Authorization for the Use of Military Force (AUMF) allowing the president to attack the terrorists responsible for 9/11. This was coupled with Article 51 of the UN Charter through the clause allowing a nation self-defense in the face of extraordinary threats to the national security. The U.S. Supreme Court further ruled that the U.S. could indeed label U.S. citizens fighting in Afghanistan as enemy combatants insofar as the AUMF authorized military force in Afghanistan.

Exercising the right to self-defense in targeting and killing terrorists attempting to attack the United States is a relatively easy decision to make. These are foreign combatants who have been identified as terrorists, and where it has been proven there are no better or safer means to capture them then targeted killing can be justified. The issue escalates to another plane, however, when such an enemy combatant is a U.S. citizen.

Where the precedent has been codified to apply legal jurisdiction to U.S. citizens anywhere in the world based upon their citizenship also implies equal application of constitutional guarantees. Yet the very nature of a targeted killing obviates the process of constitutional protection. The executive branch has retained to itself the role of judicial adjudication in determining a citizen’s guilt in supporting terrorism, with no recourse for the accused to challenge the charges or facts, nor seek appellate review of their case.

On the one hand, the 5th Amendment of the U.S. Constitution guarantees due process of law, a guarantee that extends to U.S. citizens no matter where in the world they may be. A drone attack robs an individual of any due process opportunity to protest the accusation of terrorism and demonstrate his or her innocence. There is certainly no opportunity to face an accuser when a missile drops out of the sky killing them.

On the other hand, Article III of the Constitution clearly delineates what constitutes treason. This is further codified in Title 18 of the U.S. Code. Specifically, article 2381 makes it a crime to provide “aid and comfort” to the enemy. In conjunction with this, paragraph 2339 extends jurisdiction over the criminal acts no matter where in the world the perpetrators are located. It is their U.S. citizenship that opens them to prosecution, not the locus of their acts.

Using drones to attack terrorists posing an imminent threat, for whom there are no good alternatives for capture and extradition, has been justified and authorized. The fact that the terrorists creating a danger for Americans are themselves American citizens becomes moot in the face of impending danger. It should be stressed that every effort is made to capture and extradite terrorists holding U.S. citizenship. However, just as a police officer domestically will make every effort to capture and arrest a violent criminal, the officer is authorized to use deadly force if that criminal poses an immediate lethal threat. When other means of safe arrest have been exhausted and threat of death is imminent, the officer is justified in using deadly force in self-defense. The same concept holds true internationally. After it has been determined that a drone attack is the only means by which to halt an impending terrorist plan, it cannot suddenly be halted or aborted because one of the perpetrators is an American, especially where a multitude of innocent American lives are at stake.

Assassination or Targeted Killing?

Executive Order 12333 prohibits assassinations, which are more narrowly defined as the killing of an opposing leader for political reasons.[i] The targeting of terrorists, and more specifically terrorist group leaders, has no political agenda attached to it. Rather, attacking terrorists has the sole purpose of preventing their attacks upon others. President Bush relied upon a 1989 Memorandum of Law distinguishing assassination from lawful targeting of enemy combatants threatening U.S. national security or American citizens, in war or peacetime. In that memorandum, the State Department legal adviser (Abraham Sofaer) argued the right to strike terrorists in any territory from which they launch attacks when the state in which they are located has failed to halt those attacks when requested to do so.[ii] The argument draws support from the U.N. Charter, article 51, permitting countries the inherent right to self-defense when attacked.[iii] The U.S. has justified its actions under the concept of self- defense, when other nations harbor terrorists, regardless whether they do so knowingly or innocently, who threaten U.S. citizens, and the host country is unable or unwilling to accord protection as is expected by international standards. The target’s status is determined by their combatant nature threatening the U.S. and not their physical location within a combat zone.

Arguing against this principle is Mary Ellen O’Connell, law professor at Notre Dame. She argues that CIA employees operating drones are not lawful combatants and thus the missiles they launch are unlawful and tantamount to murder. She further argues that attacks in non-combat areas such as Pakistan can only be legitimate if Pakistan itself is responsible for attacks upon the U.S.[iv] Ms. O’Connell is joined by Jane Mayer of the ACLU who claims CIA attacks in Pakistan violate international law because the U.S. is not at war with Pakistan. In other words, both Ms. O’Connell and Ms. Mayer claim a terrorist can only be a legitimate target when in a combat zone. Otherwise, they are inviolate in a neutral country.

These arguments fail due to their faulty foundation. The terrorists who have threatened the U.S. and are therefore labelled as enemy combatants, making them legitimate targets, are pursuing and supporting the goals of a non-state entity. They have allegiance to a transnational network but not any country from which they are operating at any given time. They are non-state actors and it is their support of a violent organization dedicated to destroying America that makes them enemy combatants. They are not representing or acting on behalf of the nation from whence they launch their attacks.

In contrast, CIA operators controlling drones, who are often military personnel, are acting on behalf of the U.S. government. Committing acts of war at the behest of a recognized state defending itself most definitely identifies them as combatants. Being in uniform or a civilian is immaterial, both are covered by a Status Of Forces Agreement when operating on foreign soil. As such, they are clearly more legitimately combatants than stateless terrorists.

To Ms. O’Connell and Ms. Mayer’s argument that attacking terrorists in Pakistan is to attack Pakistan itself, they argue that the world is not a combat zone and battlefield tactics cannot be employed anywhere a terrorist is found.[v] Again, the argument misses the basic foundation that where a country is incapable of controlling actions within its own territory, such as is the case with Pakistan trying to deal with the Federally Administered Tribal Areas bordering Afghanistan, the U.S. retains the right to defend itself against attacks launched from such an ungoverned area. It would be beneficial for the host country to interrupt these attacks and arrest the perpetrators, holding them for extradition. Failing that, cooperation and approval for superior technology such as drones to achieve the same end is solicited. Pakistan has only occasionally protested drone attacks in its territory, instead quietly approving the program in general as it also targets individuals attacking the Pakistani government. Furthermore, the ACLU’s argument that war-time tactics can only be used in a declared war zone misses the point that the enemy terrorists have not confined themselves to any war zone. The conflict is wherever they are conducting terrorism aimed at the United States.

Author John Yoo sums up the argument that targeted killings can be the best policy in this new type of war initiated with the 9/11 attacks. The enemy is a network, not a nation or a state. He posits the best strategy is to attack the individuals of the network, as there are no armed forces to confront.[vi] President Bush argued that the on-going violence perpetrated by Al Qaeda against the United States encompassed not just by the 9/11 attacks but also including the 1993 attack on the World Trade Center, the 1998 attack on two U.S. embassies in Africa, the 2000 attack on the USS COLE, and then the Al Qaeda attacks in London, Madrid, and Bali all constitute an on-going armed conflict, not individual incidents.[vii] Therefore, targeted killings as a response fall squarely under the self-defense concept of Article 51 of the U.N. Charter in response to that on-going conflict.

Supporting this concept, the U.N. Security Council adopted measures under its own Chapter VII powers to bar states from financing terrorist organizations, require all member states to prosecute terrorists, deny safe haven to those who do finance or harbor terrorists, and to “afford one another the greatest measure of assistance in connection with criminal organizations.”[viii]

Drones are Easy and Attractive

There are counter-arguments to the expanded use of targeted drone killings. A backlash, referred to as the Hydra affect, asserts that leaders who are killed are quickly replaced by even more followers joining the cause who are more resolute in their beliefs due to the targeting killings of their previous leaders.[ix] Evidence has also demonstrated that targeting leaders has rarely produced the changes sought or desired.[x]

Those that are not killed sometimes flee to other conflict zones to carry on their fight there. Hundreds of Al Qaeda fighters have reportedly fled Pakistan for Yemen (Al Qaeda in the Arabian Peninsula), Syria and Iraq. Many more have joined insurgent groups in Africa, specifically in Mali and Somalia.[xi] So, rather than weakening or diminishing terrorist forces, the targeted drone attacks have contributed to a wider dispersal of terrorist influence around the world.

The failed bombing attack in New York Times Square in 2010 is recognized as the first example on U.S. soil of retaliation for President Obama’s increased use of drones overseas. Though the Obama administration refused to acknowledge any connection, the perpetrator stated his motive was revenge for a 2009 drone attack that killed a Pakistani Taliban leader.[xii] Another author argues that drone attacks have replaced the Guantanamo Bay prison as the top recruiting tool for Al Qaeda today.[xiii] Though continued use of drone attacks can be linked to increased recruiting for terrorist groups, the alternative is even less acceptable. Halting drone attacks and allowing terrorist attacks to continue is unacceptable.

But is Targeting Terrorists Legal?

Transnational terrorists today pose a threat similar to that of pirates in previous centuries, being stateless and attacking citizens of multiple nations equally. Just as the first address by the international legal community regarding the use of force by all nations to combat piracy was laid out in the early 17th century, it is time now for international legal rules to recognize the tactic of targeted killing, by whatever means, as a distinct tool for combatting terrorism with internationally recognized limits on its application and repercussions for its abuse. This necessarily recognizes the nature of the threat of modern transnational terrorism seeking global religious domination as opposed to the political terrorism of the 1970s-1980s that sought ‘only’ to install socialist/communist governments in existing nation states. The goal of today’s religious extremist terrorism is to dissolve existing nation-states and borders into one global caliphate of extreme beliefs. Consequently, it is a challenge of international dimension and not simply a domestic issue of individual states.

As the technology of targeted killings via the use of drones advances, and their use becomes increasingly accepted as a norm, an international level of common understanding will likely emerge. The international bodies will need to draft international guidelines that adapt the previously accepted standards defining assassination and the prohibitions against it. This serves to remind the international community making use of drones, numbered now in excess of fifty countries, that the drone is merely a tool. Effective as it is, and therefore perhaps tempting to increase its use, the norms separating assassination, extra-judicial and targeted killings still apply.[xiv]

Conclusion

The United States is not at war with any other nation-state. The U.S. is combatting transnational violent extremist organizations whose goals include the destruction of the United States. These terrorists plan and launch their attacks from poorly governed areas where the host nation has little control over their activities. The U.S. is justified therefore under international law to defend itself since host nations are not able to prevent attacks upon the U.S. from their territory.

The U.S. will always prefer to see a terrorist captured and extradited to stand trial for their punishment. There are instances, though, where capture is not possible, or the risk to friendly forces would be too great. Utilizing drone strikes has the triple advantage of low risk to U.S. forces, low cost, and increasing accuracy preventing collateral damage.

Targeting U.S. citizens for drone attacks contravenes constitutional guarantees. The alternative, however, is to risk untold numbers of innocent lives if American terrorists are not interrupted.

About the Author

Jan Schwarzenberg is an MA candidate at the Elliott School of International Affairs, George Washington University. A retired U.S. Navy Special Operations Officer, Jan has worked exclusively in Counter Terrorism and Counter Insurgency, in both military and civilian positions, since the attacks of 9/11 with multiple combat tours. Jan holds degrees in Political Science and Criminal Justice, a Master’s in Diplomacy and Military studies, is a graduate of the U.S. Naval War College, Joint Forces Staff College, and the National Defense University. He is currently a government officer employed by the Joint Improvised-Threat Defeat Agency.

Comments

One important thing: «national liberation» movements have nothing to do with these organizations (AQ and Daesh).
The terrorist groups targeted are not recognized as «national liberation» combatants by any international organization, nation, group of states or the UN.

No, I get Bob's point. There are some groups out there -- much of what we call "AQ in the Islamic Maghreb" is a good example, evolving from long-existing insurgent or revolutionary groups in the region. AQ offers them some support in exchange for some branding, and away they go. The same thing is true of some of the ISIS-affiliated groups in Africa -- they're marriages of convenience. On the other hand, the international reputation of AQ and ISIS aren't unknown to anyone not living under a rock...lie down with dogs, get up with fleas.

I was expecting an article that wasn't rehashing older arguments and instead actually discuss what the title was: targeting American terrorists with drones. Instead, only the opening blurb and last sentence actually makes not of that and the lead is, well, misleading and doesn't discuss any of the eight Americans killed in armed UAS operations--of which seven were not by design or actual targeting.

The first American borne terrorist killed by armed UAS was riding with the al-Qaeda member and mastermind behind the USS Cole attack (Ali Qaed Senyan al-Harthi) in Yemen, but not identified by name...his name was Kamal Derwish. Derwish wasn't the primary target but he was a terrorist and it wasn't unitl later that it was realized he was in the vehicle.

The next American born terrorist killed by armed UAS operations was Anwar al-Awlaki, also killed in Yemen. al-Awlaki is the only one actually targeted for a planned strike. Unknown at the time, but riding with al-Awlaki was Samir Khan, the editor of the al-Qaeda magazine "Inspire and also borne in the US.

The fourth American killed, again in Yemen, also born in the US, was al-Awlaki's 16 year old son Abdulrahman by virtue of being near another drone strike targeting Ibrahim al-Banna, the Egyptian media chief for al-Qaeda’s Yemeni affiliate.

The fifth American killed, this time in Pakistan, by armed UAS was Jude Kenan Mohammad a recruiter for al-Qaeda and the Pakistani Taliban, also not specifically targeted.

Killed by accident was American Warren Weinstein along with an Italian hostage named Giovanni Lo Porto as part of a UAS strike against al-Qaeda militants along Pakistan's border with Afghanistan. The same operation also killed an American al-Qaeda militant named Ahmed Farouq. Another strike in the same region in January killed Adam Gadahn, a prominent al-Qaeda figure who was also a U.S. citizen.

Ms. O'Connell and Ms. Mayer's arguments are rightly refuted in the article as they both approach things from a nation-state conflict aspect. al-Qaeda members are legitimate targets even with their trans-national status. Al-Qaeda has attacked the US and continued attacks and retaliation is legal; the fact that international norms and law of armed conflict has not yet caught up--and really, how long does that take given we've been conducting combat ops since 2002?

Lastly, no real discussion on the aspects of a lack of true armed UAS policy by the US which leaves things open for other countries and trans-national organizations, if/when they get the capability, to conduct strikes in the US. Setting the foundation should be the goal rather than trying to stand behind obscure procedures involving kill list development for the White House to approve (shades of Lyndon Johnson directing B-52 strikes and selecting target lists him self during the Vietnam War).

BL: if you're going to title your article "Targeting American Terrorists with Drones: Efficient, But Legal?" and then not even discuss that topic, all you've done is design a "grabber" title to get people to read your article.

First, we need to erase mention of drones (UAVs, RPAs, etc) from this question -- the weapon is irrelevant to the question, which applies equally to airstrikes from manned aircraft, SOF raids, or artillery barrages.

I'm not a lawyer, but a U.S. citizen who takes up arms in the service of another power becomes a legitimate enemy combatant if that power goes to war with the U.S. In fact, the naturalization oath starts: "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic...," implying that entering the service of a foreign power or an organization declared by Congress as an enemy of the United States could mean forfeiting citizenship. That gets knotty, but certainly makes the issue of citizenship rights less clear-cut...to a non-lawyer.

Regardless, all those years of annual LOAC refreshers leads me to believe that anyone identifiably in the service of an organization with a declared or demonstrated intent to wage war against the United States pretty comfortably falls within the definition of an enemy combatant. And therefore is a perfectly legitimate target, regardless of who issued their passport. Should I take up service with intent to wage war against my own country, I'd expect to be treated no differently.

Concur about removing UAS from the discussion. Wondering about your point on Americans born in the US vice naturalized. The seven Americans killed by armed UAS strikes were born here but then left the country (and six joined al-Qaeda). while they should have gone through the process to strip them of their citizenship, that process, which is very hard to do these days, never occurred mainly, for five of them, because they were not specific targets of a drone strike; only one was (Anwar al-Awlaki) and the process to strip him of his citizenship never occurred.

You're correct related to taking up arms against the US, but so far, other than the above seven (specific to drone strikes; who knows how many other have been killed by normal combat ops) it seems its 'only about the drones" which is where your first line comes in; American born terrorist killed by a sniper hasn't been assassinated 9as the press and others like to use that term) they've been killed during a combat operations yet we don't see all the angst about what killed them being discussed. Apparently, bombs and missiles from manned aircraft, artillery from manned cannons, and bullets from s Soldiers rifle are ok, but not a missile/bomb from a drone.

Wondering about your point on Americans born in the US vice naturalized.

Really didn't intend to differentiate between the two -- I was looking for something that explicitly mentioned U.S. citizenship and serving a foreign power, and the naturalization oath was the closest I found.

Apparently, bombs and missiles from manned aircraft, artillery from manned cannons, and bullets from Soldiers rifle are ok, but not a missile/bomb from a drone.

The whole issue of "robots" killing people touches a very deep psychological nerve across human cultures. There's a pretty rich vein of stories about human creations turning on their creators/masters. It's literally the oldest plot in science fiction (Mary Shelley's Frankenstein), but goes all the way back through human history to the Golem stories. Pointing out that we've already crossed the boundary into autonomous weapons in the form of long-range missiles and an increasing number of air defense systems makes little difference. A CWIS doesn't discriminate much, but a UAV is perceived to hunt -- to gather information, and from there to decide who to shoot and who not. People ignore the fact that there's a human in the decision loop -- the human isn't there, but the machine is. Perception equals reality...the human-controlled UAV is a killer robot, but not the autonomous (once launched) Hellfire missile. It's a debate that won't go away soon.

The bigger question, is why do we perceive the revolutionary forces of other countries to be at "war against the United States" simply because some leader said they were as part of his rhetoric, or because they happen to accept UW assistance from AQ or ISIS.

Remember when it was considered brave and honorable to travel abroad and serve in the revolutionary forces standing up to some despot or another?

The Abraham Lincoln Brigade in the Spanish Civil War? The Flying Tigers in China in WWII? The Crusades? Half the male population of Ireland or Scotland over the past 500 years? etc., etc.,

When we take counsel of our fears, any act of outrageous violation of the sovereignty / rights of others becomes justified as proper. When we write the laws to support those actions they become legal as well.

Legal does not mean just, and we are following a dark and sordid path of many another powerful nation who confused that fact. In the law they speak of "the slippery slope..." Well, we are well over the crest, and picking up speed.

Al-Qaeda and the Taliban are hardly "revolutionary forces." As for traveling out to be "brave and honorable" to serve in revolutionary forces the Crusades can hardly be noted as that nor were the Chinese fighting a revolution against Japan that the Flying Tigers supported.

All of your examples are referenced of wars within established nation-states or against actual enemies attacking and occupying other nation-states. Al-Qaeda has no state under it and has attacked the US repeatedly at home and abroad; therefore, they are legitimate targets as designated by the US Congress in 2002.

Implying its 'more manly to go off to war' to fight man to man is a bit dated; especially when simply squandering your men in frontal, WW I style attacks means we are not doing what leaders should be doing in ensuring your men live to fight another day as well as ensure our men and women return home to their families. Some al-Qaeda and Taliban have noted the use of UAS "isn't manly and only cowards fight from afar." Guess they don't consider the use of suicide bombers (talk about fighting from afar) and turning commercial jets into cruise missiles as cowardly.

Armed UAS are simply trucks carrying weapons as are B-52s, F/A-18s, F-15s. Similarly, artillery could be classified as not manly because there is no person to person engagement and instead, unfeeling projectiles crashing into the enemy (hmmm, sounds like a missile launched form a UAS). using all the technology available to the commander to ensure our troops live to fight another day and "letting the other poor dumb guy die for his country" is the point.

Remember when it was considered brave and honorable to travel abroad and serve in the revolutionary forces standing up to some despot or another?

The Abraham Lincoln Brigade in the Spanish Civil War? The Flying Tigers in China in WWII? The Crusades? Half the male population of Ireland or Scotland over the past 500 years? etc., etc.,

None of those went to war against the country they came from. But I don't have a good answer to the top question. I wrote in response to Gary Anderson's recent column that we could stand a little more public debate on who our enemies really are, but I don't see that interrupting the endless reelection cycle soon, and the public doesn't seem to mind.

The less satisfactory answer is to fall back on Stephen Decatur...and when that no longer suffices, then it's time to become an ex-pat.

Legal does not mean just, and we are following a dark and sordid path....

As far as I can see, the two have always only been loosely associated. The only saving grace is so far, it's not any better elsewhere.

My background - in another life - is Constitutional Law, so I understand the normative fine print and the arguments levelled by the authors mentioned (there are many others. Cf., for example, the legal clinics maintained on this subject by Columbia Law School, in 2014-2015).
But we have to understand a couple of things:

*UNC Art. 51 recognizes the right to national and international (individual and collective) self defense in case of an actual (letter of the law) or imminent (spirit of the law) attack.

*Both AQ and Daesh have declared war on a set of states (if not the whole international community), and so the attack is ongoing.

*Also the UN produced several decisions at SC level, treating AQ and Daesh as dangerous enemies of the humankind (a bit like piracy in previous centuries), and encouraging member states to suppress their evil doings.

*Militants of such organizations have no declared nationality, regardless of their legal papers. The entities they belong to are the targeted ones. There is no case of capricious individual cherry picking by rule of law states: attacks evolve against the whole structure: manpower, vehicles, command posts, dumps, assembly sites, bases, etc.

*My problems regard two other matters: the position of Pakistan and collateral damage.

*Pakistan has had an ambiguous policy towards drone strikes. All of these happen against FATA areas, not Pakistan federal territory proper. Of course FATA are also part of Pakistan, but with a specific statute. Many groups fighting the US etc. and also fighting Pakistan are sieged there, and they have been targeted by Islamabad own forces, including airplanes and armed helicopters, and also, by the way, the Burraq drones (we can argue if they were used armed or as recon platforms).

*Pakistan condemned the US attacks sometimes, in particular when large collateral damage happens, but never declared itself in a state of defensive wars against the US, arguing for example that it would be protected by art.51. So, «a contrario sensu», it is not treating these attacks as a act of war against Pakistan, although claiming they violate international law.

*Collateral damage is the main problem. Although it is said that only 6% of resulting casualties are civilians, more than 0% is always too much. And there is no provision for compensations or any body set by the US (for example, a joint legal unit with Pakistan) to repair any unjust harm done.

Proving that smart people can come to believe dangerously stupid things.

The day we adopt this recommendation is the day we lose as a nation.

The liberties and protections contained in our Constitution have been saving us from ourselves for over 230 years - to piss that away over the current little bit of confused fear mongering we are stirring up over the friction between a rapidly evolving Middle East and a slowly evolving US policy toward that region is pure foolishness.

Instead of figuring out how to deny to Americans the sane rights and liberties we too often help to deny to others; We should be trying to figure out how we better help others to attain their own culturally appropriate version of the rights and liberties we demand for ourselves. That is what being "a shining city on a hill" really means. Do not let the voices of fear and ignorance destroy us.

True; however, American borne terrorists actively trying to destroy that "shining city on the hill" must be dealt with. Since sending in ground forces or manned aircraft to do what the armed drones are doing puts our troops at risk, why wouldn't we use armed drones to take out those actively fighting against us?

Do we target Americans in the US with armed drones? No. Do we target Americans who actually fight and advocate terror operations and killing of Americans? Yes, and so far only one and that would be Anwar al-Awlaki. Have we also killed Americans actively doing their best to attack their fellow Americans? Yes, five of them. Do innocents get caught up in attacks, by UAS or otherwise? yes, and that is the nature of war like it or not. Protecting civilians is paramount, however, civilians do get caught up in fighting.

The US does its best not to kill innocents while those actively trying to attack us, including American born terrorists, have no problem killing Americans. Since the days of unguided, "dumb" bombs killing civilians and even Allied troops in large numbers, we've used technology to significantly drop those numbers from 10s of thousands to less than a few dozen. Is killing innocents and civilians intentional? No, but it happens in war. Last I looked, we don't use human shields, we don't send suicide bombers into discos, and we don't send heavily armed fighters into schools to kill students and teachers; but our adversary does. Do we actively not conduct strikes with armed UAS if innocents walk into the picture? I can say, unequivocally, yes because I've seen it first hand.

Fighting to stop those who actively do their best to take us down while terrorizing their own people does support the "shining city" aspect; especially when host nation forces won't do it or simply can't.